TMI Blog2018 (7) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... of subsection 3 of Section 184 of the Act, the appellant firm would continue to be assessed as a partnership firm. This is so as there is no change either in the constitution or in the share of the partners. Whether the amended section would require the assessee to file a certified copy of the partnership deed along with the return of income? - Held that:- requirement of a certified copy of the instrument of the partnership deed being filed along with the return of income for assessment years commencing from 1st April, 1993, only applies to firms which seek to be assessed as a partnership firm under the Act for the first time after 1st April, 1993. There is no warrant to restrict the meaning and the scope of subsection 3 of Section 184 of the Act. Accepting the submission on behalf of the Revenue would necessarily require reading words into subsection 3 of Section 184 of the Act to the effect that it would apply in respect of the assessment as a firm was first sought “after 1st day of April, 1993”. It is a settled position in law that fiscal statute is to be strictly construed As the appellant firm was assessed as a partnership firm prior to Assessment Year 1993-94 and as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a partnership firm after due verification. 5. Being aggrieved with the order dated 30th December, 2016 of the CIT(A), the Revenue preferred an appeal to the Tribunal. The impugned order dated 29th June, 2001 of the Tribunal allowed the Revenue's appeal by holding that for the subject assessment year there was a change in the share of the partners in as much as the provision for salary and interest was made for the partners as required in terms of Section 40(b) of the Act. Thus, there was a change in the share as evidenced by the instrument providing for salary and interest to the partners to secure the benefit of Section 40(b) of the Act. Thus, it set aside the order of the CIT(A) and restored the order of the Assessing Officer assessing the appellant as an AOP. 6. Before we deal with the respective contentions, it would be useful to reproduce Section 184 of the Act as existing at the relevant time. It reads as under : 184. (1) A firm shall be assessed as a firm for the purposes of this Act, if (i) the partnership is evidenced by an instrument : and (ii) the individual shares of the partners are specified in that instrument. (2) A certified copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the certified copy of the partnership deed along with return of income for the subject assessment year is mandatory; and (c) Even though an instrument was executed in the previous year relevant to the subject assessment year providing for salary and interest to the partners, the same was done only to satisfy the provisions of Section 40(b) of the Act It does not make any change in the constitution of the firm or in the shares of the parters in the partnership firm. Thus, no occasion to apply section 182(4) of the Act would arise. 8. As against the above, Mr. Walve, learned Counsel appearing for the respondent Revenue in support of the impugned order submits as under : (a) In view of the fact that a fresh instrument was executed in the previous year relevant to the subject assessment year providing for salary and interest to its partners so as to avail of benefit of Section 40(b) of the Act, would by itself indicate that there is a change in the profit sharing ratio of the appellant. Thus, the requirement in terms of Section 184(4) of the Act that the appellant assessee should file a certified copy of the partnership deed along with its return of income for the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he share of the partners. 12. Mr. Walve next contended in any event that from the Assessment Year 1993-94, even if the assessee was being assessed as a firm prior to Assessment Year 1993-94, the amended section would require the assessee to file a certified copy of the partnership deed along with the return of income. According to him, amendment to Section 184 w.e.f. 1st April, 1993 is a fresh start. Reliance in support is placed upon the decision of Hon'ble Kerala High Court in Bhaskar and Co. (supra) . The aforesaid decision proceeds on the basis that after the amendment to Section 184 of the Act, the earlier assessment as a partnership firm under the earlier regime cannot be relied upon to avail the benefit of assessment as a partnership firm from Assessment Years 1993-94 onwards. 13. With respect, we are unable to agree with the view of the Hon'ble Kerala High Court in Bhaskar and Co.(supra) on the above issue. This for the reason that it proceeds on the basis that prior to Assessment Year 1993-94, there was a different regime viz. registration of a firm on compliance of the formalities to be assessed as a partnership firm. Now there is no requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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